Terms of Use

The www.sms-assist.com website and the services offered via such site (collectively, the “Site”) are provided by SMS Assist, L.L.C. (“SMS Assist”) and are subject to the terms set forth herein. By accessing, browsing and/or using this Site, you acknowledge you have read, understood and agree to be bound by the terms and conditions provided herein. If you do not agree to these terms, do not use this Site and exit immediately.

SMS Assist reserves the right to make changes at any time to the Site and these Terms of Use. Any modifications to the Terms of Use will be effective upon posting. Your continued use of the Site following posting of any revised Terms of Use will constitute acceptance of the modified Terms of Use.

NOTE: If you are, or your employer (or client) is, a “Client” or “Affiliate” of SMS Assist, your use of this Site, including through Client or Affiliate website portals accessible by logging in through this Site (“Client Portal” and “Affiliate Portal,” respectively, and collectively, the “Portals”), is also governed by the terms of the written agreement between you, or your employer (or client), and SMS Assist (“Client Agreement” or “Affiliate Agreement”), and the additional terms governing your use of the Portals. In the event of a conflict between such Client Agreement, Affiliate Agreement or additional terms and these Terms of Use, such Client Agreement, Affiliate Agreement and additional terms (as applicable) shall control.

Ownership of Content, Copyrights and Trademarks

All content on this Site, including, but not limited to, all photos, images, videos, text, data and data compilations, graphics, works of authorship, software, design, logos and button icons (collectively, “Site Content”); any improvements or modifications to such Site Content; any derivative works based on any of the foregoing; and the collection, arrangement and assembly of all such Site Content, are the property of SMS Assist and/or its licensors and are protected by United States and international copyright and other intellectual property laws.

The mark “SMS Assist,” and other marks that may be displayed on the Site are the proprietary service marks or trademarks of SMS Assist or other third parties. SMS Assist’s marks may not be used in connection with any product or service that is not SMS Assist’s, in any manner that is likely to cause confusion among consumers, or to disparage or discredit SMS Assist. All trademarks and service marks not owned by SMS Assist that appear on this Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by SMS Assist. You may not use, copy, modify or display any of the trademarks, service marks, trade names, company names or logos appearing on the Site without the express written permission of the respective owner thereof.

Nothing in these Terms of Use shall be deemed to grant to you or any other user any license or right in or to any copyright, trademark, trade secret, trade name, company name or other proprietary right of SMS Assist or any other individual or entity.

Registration

To obtain access to certain SMS Assist services through a Client Portal or Affiliate Portal, you must be registered with SMS Assist. As part of the registration process, you will be provided with a Login ID and password. You agree that the information you supply during that registration process will be accurate and complete and that you will not register under the name of, nor attempt to enter a Portal under the name of, another person or entity. If SMS Assist has reasonable grounds to suspect that information you provide as part of your registration is untrue, inaccurate, not current or incomplete, SMS Assist has the right to suspend or terminate your access or account and refuse any and all current or future use of our services. You are responsible for maintaining the confidentiality of your Login ID and password, and for all activities that occur under your account, and you agree to hold SMS Assist harmless for any costs incurred in connection therewith. If you discover or suspect any unauthorized use of your Login ID or password or any other breach of security of your accounts with SMS Assist, you agree to immediately notify SMS Assist at security@smsassist.com. SMS Assist is not responsible for any loss or damage arising from your failure to protect or to keep confidential your Login ID or password.

Permitted Use and Restrictions

The Site includes various types of Site Content. You may download, view, copy and print information, materials and any other aspect of this Site (i) solely for your personal, informational purposes; (ii) provided that neither the materials, nor any proprietary notices or disclaimers therein, are modified or altered and (iii) and so long as you do not store any significant portion of, or distribute copies of, materials found on this Site, in any form (including electronic means), without prior written permission from SMS Assist. You agree you will not, in any way, modify, move, add to, delete, manipulate or otherwise tamper with the Site Content, nor will you decompile, reverse engineer, disassemble or unlawfully use the Site Content or portions thereof, nor will you assist any person or entity in any way in these activities.

You agree you will not interfere, in any way, with others’ use of or access to the Site or SMS Assist services and will not attempt to gain unauthorized access to the computer system of SMS Assist or any other Site user, including any use or attempted use by you of another person’s password and account information. In addition, you agree not to provide to SMS Assist any false information, or to otherwise take any other action in connection with your use of the Site which violates any treaty, law or regulation and to fully comply with all applicable treaties, laws, rules and regulations in your use of the Site.

You agree that you will not use any robot, spider or other automatic device, manual process or application or data mining or extraction tool to access, monitor, copy or use the Site, or any portion thereof (including information regarding vehicles offered at auction or the results of any auction). You agree not to take any other action that imposes an unreasonable or disproportionately large load on the Site.

Except as expressly provided herein, you may not use, download, upload, reproduce, copy, duplicate, print, display, perform, republish, sell, license, post, transmit, disseminate, redeliver using “framing technology,” otherwise distribute, or commercially exploit in any way the Site or any portion thereof or any information or content on the Site, without the prior written permission of SMS Assist or its licensors.

Unauthorized Use of the Site

You agree not to access or attempt to access any password-protected portions of the Site (including the Portals) without an authorized Login ID or password. SMS Assist reserves the right to investigate and take legal action against any illegal and/or unauthorized use of the Site including any use or attempted use by you of another person’s password and account information. Our decision not to pursue legal action for any violation of these Terms of Use shall not be construed as a waiver of any provision of these Terms of Use or any legal rights of SMS Assist.

Further, SMS Assist reserves the right to deny access to the Site, or any service or feature provided via the Site, to anyone who violates this Terms of Use or any other applicable terms and conditions of use of the Site or portions thereof or who, in our judgment, interferes with the ability of others to enjoy this website, or infringes the rights of others.

Links to Third Party Sites

The Site may include links to the websites of third parties. SMS Assist is not responsible for the content of any links, or any products, services or other materials relating to any linked site, or any link contained in a linked site. SMS Assist does not control these third party websites and is not responsible for the content, products or services available through these sites. The existence of links from the Site to these sites should not be construed as an endorsement of any of the content, products or services appearing on such sites or as implying an association between SMS Assist and the operators of these sites. By using these third-party websites you may be agreeing to their terms or visitor agreements. You release SMS Assist and its affiliates from any damages that you may incur, and agree not to assert any claims against them, arising from your use of these third-party sites or from your purchase or use of any third-party provided product or service.

Privacy

The terms of SMS Assist’s General Website Privacy Policy are hereby incorporated as part of these Terms of Use. The Client Portals and Affiliate Portals include additional or different terms and policies relating to the use of personal information collected through such Portals (collectively, “Supplemental Privacy Policies”).

User Content

Certain features or areas of the Site may allow you to upload certain information or content to the Site (collectively, “User Content”). You acknowledge that you are responsible for the User Content you submit through the Site, and that you, and not SMS Assist, will bear full responsibility for each item of User Content, including its legality, reliability, appropriateness, originality and copyright. Except where otherwise provided in the Client Agreement or Affiliate Agreement, all such User Content shall be considered non-confidential. You retain all rights, title and interest in and to any and all User Content that you provide via the Site. Nonetheless, except as otherwise expressly provided by Client Agreement or Affiliate Agreement, and subject to the terms of the SMS Assist’s General Website Privacy Policy and/or the Supplemental Privacy Policies, you agree that by submitting any User Content to SMS Assist on or through the Site, you hereby grant to SMS Assist a non-exclusive, perpetual, irrevocable, worldwide, unrestricted, sublicenseable, royalty-free right and license to reproduce, modify, adapt, publish, translate, create derivative works based on, distribute, perform, display and/or otherwise use any such User Content in our sole discretion, including incorporating any such User Content in other works in any form, media, or technology now known or hereafter developed.

You agree not to upload on or transmit to or via the Site any User Content which: (i) infringes or otherwise violates any copyright, patent, trademark, trade secret, trade names, company names or other proprietary right; (ii) is defamatory, libelous, expresses hate, or is unlawfully threatening; (iii) is pornographic, obscene or exploitative of a minor; (iv) contains or embodies a virus, worm, trojan horse or other contaminating or destructive feature; or (v) otherwise violates any applicable treaty, law, rule or regulation.

SMS Assist does not necessarily endorse, support, sanction, encourage, verify, or agree with any comments, opinions, or statements of third parties as may be displayed on or transmitted via the Site. Any information or material placed on the Site by third parties are the views and responsibility of those who post the statements, and do not necessarily represent the views of SMS Assist.

Disclaimer of Warranties and Limitation of Liability

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE, OR ANY INFORMATION, CONTENT, SERVICES AND/OR MATERIALS CONTAINED IN, ACCESSED VIA, OR DESCRIBED ON THE SITE, IS AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION, CONTENT, SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SMS ASSIST DOES NOT MAKE ANY, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND/OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND USE OF THE SITE, OR ANY INFORMATION, CONTENT, SERVICES OR MATERIALS ON OR ACCESSED VIA THE SITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SMS ASSIST DOES NOT REPRESENT OR WARRANT THAT (I) ANY OF THE INFORMATION ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE OR CURRENT (AND SMS ASSIST IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM YOUR RELIANCE ON ANY ASPECT OF THE SITE), (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THIS SITE WILL BE ACCURATE OR RELIABLE OR (III) ANY ERRORS IN THIS SITE WILL BE CORRECTED. FURTHER, SMS ASSIST DOES NOT MAKE ANY WARRANTIES REGARDING THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE OF THIS SITE, THE INTERNET, COMPUTER HARDWARE OR SOFTWARE, OR ANY INTERNET ACCESS PROVIDER, TO SEND OR RECEIVE ANY ELECTRONIC TRANSMISSION. MOREOVER, WHILE WE MAKE REASONABLE EFFORTS TO ENSURE THE SECURITY OF OUR SYSTEMS, SMS ASSIST MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.

IN NO EVENT SHALL SMS ASSIST OR ITS AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF SMS ASSIST OR ITS AFFIALITES (COLLECTIVELY, THE “SMS ASSIST PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE OR IMPROPER USE OF THE SITE, OR ANY INFORMATION, CONTENT, SERVICES OR MATERIALS AVAILABLE THEREON (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE.

CERTAIN STATE LAWS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, AND THUS SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS ABOVE MAY NOT APPLY TO YOU.

NOTHING IN THIS “DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY” IS INTENDED TO SUPERSEDE THE TERMS OF ANY APPLICABLE CLIENT AGREEMENT OR AFFILIATE AGREEMENT.

Indemnification

You agree to indemnify and hold the SMS Assist Parties harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees, disbursements and court costs) incurred by any of the SMS Assist Parties arising from or in connection with (i) your violation of these Terms of Use; (ii) any User Content provided by you to SMS Assist; and/or (iii) your violation of any rights of any third party.

Modification or Discontinuance of the Site by the Company

At any time, without notice to you, and for any or no reason, SMS Assist may modify or discontinue the Site or any other services provided therein. SMS Assist shall in no way be held liable for any consequence which results from SMS Assist’s decision to modify or discontinue providing the Site or any other services provided therein.

Governing Law

The laws of the State of Illinois will govern these Terms of Use, without giving effect to any principles of conflicts of laws. You agree that any action arising out of the Terms of Use shall be brought in state or federal court in Chicago, Illinois, and you consent to the jurisdiction of such courts.

Miscellaneous

You may not assign or otherwise transfer these Terms of Use or any rights or obligations hereunder. SMS Assist’s failure to act on any breach of any provision hereof shall not be construed as a waiver of the enforcement of any provision unless SMS Assist agrees to such waiver in writing.

If any portion of these Terms of Use is deemed unlawful, void or unenforceable, that portion will be deemed severable and will not affect the validity or enforceability of the remaining provisions. These Terms of Use, and other terms and conditions within the Site, set forth the entire understanding between you and SMS Assist with respect to the use of the Site and supersede any prior or contemporaneous communications, representations, or agreements (besides Client Agreements or Affiliate Agreements), whether oral or written, between you and SMS Assist with respect to such subject matter.

Contact

If you have any questions relating to these Terms of Use, the Site or SMS Assist, please contact: info@smsassist.com.

Notice and Procedure for Making Claims of Intellectual Property Infringement

SMS Assist respects the intellectual property rights of others. If you believe that any content on this Site may infringe your copyrights or other intellectual property rights, please provide SMS Assist the written information specified below. Please note that this procedure is exclusively for notifying SMS Assist that your intellectual property rights have been infringed.

An electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest;

A description of the intellectual property right that you claim has been infringed;

A description of where the material that you claim is infringing is located on the Site;

Your address, telephone number, and e-mail address;

A statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property owner, its agent, or the law; and

A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the intellectual property owner or authorized to act on the intellectual property owner’s behalf.

SMS Assist’s agent for notice of claims of copyright infringement or other intellectual property infringement on the Site can be reached as follows: